The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-08-01

Hobson. Den. $40; People VS.. Van Nostrand,
46 n. Y. 3S2; Peopie VS.. Tieman 80 Barb 1885,
Mayor VS. Flagg. Abb. Pr. 296; Nichols VS..
Mclean, SO How. Pr. 49,
OF course it is xpected and implied by the
law generally that the officer shall hold his Of
fee and discharge his duties, and it is pro-
vlded in Sec. % of Art of our Constitution
on that: 1.-The Lieutenant governor, while he
shall act as President of the Senate, shall receive
for his services the same compensation as the
Speaker Of the House of Representatives. and
any person acting Governor shall receive the
compensation attached to the Office of Governor .
L his section deprives the Lieutenant governor or
this particular compensation while acting as
Governor. while unable to act as President OF
the Senate, but it does not apply to a case where
the Lieutenant governor has been prevented
from acting as President Of the Senate by the
unconstitutional act of that body. In Adams VS..
The Justices, 81 Georgia 200. it was held that
the collector had the sole authority to make the
tax assessment, but the justices of the inferior
court levied an extra tax, and directed the re-
ceiver to make the assessment, which he did. In
other words the inferior court, as did the SEN
ate in the case you state, put another IN the
place of the rigbtful officer The Supreme Court
held that the collector could not be
thus deprived of the official compensa-
ton which he would have earned bad
he been permitted to perform his duties In
concluding the opinion the court says: The
public have an interest in being protected against
the wrongful of Its officers and agents.
When the people elected the collector, he was
entitled to all the emoluments of the Office to
which he was chosen, and it is not in the power
of the court TO give them TO another" Neither
could the Senate deprive Lieutenant-governor
Robertson of his right to the salary by any I'M
constitutional act. for what the Constitution
gives the Senate cannot take away.
In People vs. Miller, "a Mich 458, it is hold
that where an officer duly elected is kept out of
ONCE by one to whom the returning board gave
the certificate of election, he is entitled to the
salary for the period during which he was kept
out of the office, for official salary is not made
dependent on the amount of work done; 1t belong
TO the office itself. without the personal
service of the officer
In Comstock VS.. City, 40 Mich 397 it was held
that legally elected officer duly qualified and
standing ready to perform the duties of his Of
fee, is entitled to the salary, even though de-
barred from the performance of his duties by
an intruder acting in good faith. To the same
effect is Petit VS.. Rousseau 10 La. An. 239
In Dorsey VS.. Smith, 28 Cal. Il, the facts
were that Dorsey and Platt we're opposing can
didates for the Office of district attorney On
the face of the returns Plats had more votes
than Dorsey. The latter demanded the Office
from Brown, the Incumbent, contested the cleo
ton, and obtained Judgment in his favor
While the case was pending Brown occupied the
office and drew the salary. Upon getting pos
session of his Office Dorsey demanded from the
auditor the salary which had been drawn by
Brown but met with a refusal, and he brought
an action in mandamus against the auditor to
compel him to issue a warrant for the amount on
the treasurer. 1t was held that the action would
lie and that Dorsey entitled 10 the salary
which had been drawn by Brown. The court
said that 1.-The salary annexed to public Office
is incident to the title to the Office and
its occupation exercise" and approved the
of The People VS.. Morton, Abbotts Prac.,
359 where it was held that the salary and fees
of an office incident the title and not
the usurpation and colorado possession of it.
The case Of Dorsey Smith. % Cal. 81,
quoted and its doctrine approved in Douglas vs.
State. 81 Ind, 429, aud must be considered
tho law in this State. The same doctrine is af-
firmed in Stratton VS.. Oulron. % Cal. A.
In the case you present, the record of the can
by the Speaker IN the presence of the two
houses. of the declaration of the result, and of
the oath taken. furnished. at least, prima facie
evidence of the title in Robertson. See opinion
of Judge collars in Robertson State rel.
Smith. 100 Ind, 141 This evidence became
conclusive when there failure to contest
the election before the General Assembly. The
title to the Office vested in Robertson when
he took the oath of Office Shannon Baker,
80 Ind. 1901; and he was entitled to perform it's
duties, enjoy it's honors and receive its compen-
sation. He cannot be denied this compensation
merely because the Senate refused to allow him
to preside over it. That denial did not destroy
his title. AS the title remained in him. notwith-
standing the action of the Senate. it is clear
he is entitled to the incident of the title which
is the compensation.
/ therefore advise you that you should draw
the warrant which is claimed if the mileage and
per diem are stated correctly. Respectfully,
LOUIS T. MICHENER.
Attorney general.